SZOCP v Minister for Immigration and Citizenship [2010] FCA 1109 (29 June 2010)

Last Updated: 26 October 2010

FEDERAL COURT OF AUSTRALIA

SZOCP v Minister for Immigration and Citizenship [2010] FCA 1109

Citation:		SZOCP v Minister for Immigration and Citizenship [2010] FCA 1109
Appeal from:		SZOCP v Minister for Immigration and Citizenship [2010] FMCA 296
Parties:		SZOCP v MINISTER FOR IMMIGRATION AND CITIZENSHIP
File number:		NSD 581 of 2010
Judge:		KATZMANN J
Date of judgment:		29 June 2010
Legislation:		Federal Court Rules, O 80
Date of hearing:	29 June 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	7
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Solicitor for the Respondent:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 581 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOCP Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	KATZMANN J
DATE OF ORDER:	29 JUNE 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The proceeding be adjourned for hearing at 10.15 am on Wednesday 4 August 2010.
2. The appellant be referred under O 80 r 4(1) of the Federal Court Rules to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal advice and representation at the hearing of this proceeding.
3. The appellant’s written submissions be filed and served by 27 July 2010.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 581 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOCP Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	KATZMANN J
DATE:	29 JUNE 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Some three weeks ago, this matter was set down for an expedited hearing because the appellant is in detention. Today – the day fixed for hearing – the appellant applied for an adjournment of the proceedings to enable him to secure legal representation. The application was opposed. No evidence was adduced in support of the application and no notice of it was given to the Minister. The explanation the appellant gave in support of it was vague. He indicated that he had made no attempts to secure legal representation until last weekend, when he spoke to some unnamed people, apparently interested in the welfare of asylum seekers, who visited him at Villawood Detention Centre.
2. I must confess to harbouring some real concerns that this application is nothing more than a stalling tactic. Nonetheless, the appellant is in a position of significant disadvantage. But for the fact that he is in detention, I would not be disposed to accede to the application, but this is the first time it has been before the Court and, as I said, he is in detention and desirous of obtaining legal representation. Apparently, he availed himself of the legal advice scheme offered through the Department of Immigration at the point at which the matter was before the Federal Magistrate, and he was represented by a migration agent in the proceedings before the Tribunal.
3. The Minister argues that the appeal is without merit and it is not in the public interest to accede to the application. He submits it would not be in accordance with the way in which O 80 of the Federal Court Rules (Rules) is applied to make an order referring the appellant to the Registrar for legal representation from the Pro Bono Panel, given that the claim is without merit.
4. Having taken into account the Minister’s reasonable submissions, I am nonetheless persuaded to give the appellant one opportunity to obtain the legal assistance he seeks. I, therefore, propose to adjourn the proceedings for hearing on Wednesday 4 August.
5. I note that the appellant seems to have some contact with people who have indicated to him they can arrange for legal representation. He says he cannot afford it and does not propose to pay for it. He also says that the lawyer, whom those wishing to assist him had in mind was overseas and he had no idea when he would be returning. In those circumstances, and notwithstanding the practice, I propose to issue a certificate pursuant to O 80 of the Rules, referring the applicant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance in relation to this proceeding. In doing so, I have taken into account the appellant’s statement that he lacks the means to pay for a legal representative and the fact that he is in detention.
6. Although, from what I have read, it is difficult to see the merits of the application, I do not think that I should deny the applicant one opportunity to obtain legal advice and representation. I want to make it clear, though, that I will not provide a second opportunity if, when this matter is back before me on 4 August, the situation is unchanged.
7. I therefore order that:

(1) The proceeding be adjourned for hearing at 10.15 am on Wednesday 4 August 2010.

(2) The appellant be referred under O 80 r 4(1) of the Federal Court Rules to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal advice and representation at the hearing of this proceeding.

(3)

The appellant’s written submissions be filed and served by 27 July 2010.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Associate:
Dated: 12 October 2010